Federal Court of Australia

Edwards v Nine Network Australia Pty Limited (No 8) [2025] FCA 639

ORDERS

THE COURT ORDERS THAT:

1.    The intervening party’s interlocutory application dated 22 May 2025 and filed 23 May 2025 be dismissed.

2.    Ms Gina McKeon of the Australian Broadcasting Corporation be granted leave to inspect the affidavit of Rebekah Ruth Giles dated 21 November 2024 (and the exhibit thereto Exhibit RG-1) pursuant to r 2.32(4) of the Federal Court Rules 2011 (Cth), subject to the redaction of the bank account details on page 5 of Exhibit RG-1.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WIGNEY J:

1    The applicant, Ms Gina Edwards, successfully sued the respondents in defamation: Edwards v Nine Network Australia Pty Limited (No 5) [2024] FCA 422. The respondents were ordered to pay Ms Edwards’s costs on a lump sum basis, with the quantum of the lump sum to be determined by a referee: Edwards v Nine Network Australia Pty Limited (No 6) [2024] FCA 758. Regrettably, however, the disputation did not end there. Both Ms Edwards and the respondents disputed the referee’s determination, though that dispute was ultimately settled. In the meantime, a dispute emerged between Ms Edwards and her former solicitor, Ms Rebekah Giles of Giles George Pty Ltd, who sought leave to intervene in the proceeding. Leave to intervene was granted and Giles George secured an interlocutory order which required the respondents to pay the agreed lump sum costs into Court: Edwards v Nine Network Australia Pty Limited (No 7) [2025] FCA 137.

2    The dispute between Ms Edwards and Giles George is ongoing. On 15 May 2025, a media organisation sought leave to access a document pursuant to r 2.32(4) of the Federal Court Rules 2011 (Cth), being an affidavit of Ms Giles. That affidavit was filed by Giles George in support of its application for leave to intervene. Giles George opposed the access request in respect of Ms Giles’s affidavit and in due course filed an interlocutory application which sought a suppression order pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) (FCA Act) prohibiting the disclosure of the exhibit to Ms Giles’s affidavit.

3    This judgment deals with Giles George’s application for a suppression order and the media organisation’s access request. The application was heard on the papers. Ms Edwards did not oppose the media organisation’s access request and understandably did not seek to be heard in respect of the application for the suppression order.

4    The exhibit to Ms Giles’s affidavit which is the subject of the application for the suppression order includes a copy of what is said to be a costs agreement between Giles George and Ms Edwards, as well as some email correspondence between Giles George and Ms Edwards about the execution of that agreement. Ms Giles’s affidavit essentially just identifies those documents.

5    The ground for the making of a suppression order upon which Giles George relied is that the order is “necessary to prevent prejudice to the proper administration of justice”: s 37AG(1)(a) of the FCA Act. Giles George did not file any evidence in support of the interlocutory application. In its written submissions, Giles George advanced three reasons why suppression of the exhibit to Ms Giles’s affidavit was necessary to prevent prejudice to the proper administration of justice. First, it was asserted the affidavit has not been read in the proceedings yet. It followed that Exhibit RG-1 to the affidavit has not been tendered. Second, it was asserted the costs agreement “self-evidently contains commercially sensitive information about fee structures and billing practices” and that disclosure of that information “may prejudice Giles George’s broader commercial interests and competitive position”. Third, it was said that the contents of the costs agreement were not “directly relevant to the substantive issues being determined by the Court, and their disclosure would not advance the public’s understanding of the Court’s reasoning, and serve no legitimate public interest”.

6    The relevant principles in relation to the making of suppression or non-publication orders under s 37AF of the FCA Act are well settled. They were summarised by the Full Court in Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) (No 2) (2020) 275 FCR 377; [2020] FCAFC 44 at [8]-[9] as follows:

Suppression or non-publication orders should only be made in exceptional circumstances: Rinehart v Welker (2011) 93 NSWLR 311 (Rinehart v Welker) at [27]; Rinehart v Rinehart (2014) 320 ALR 195 (Rinehart v Rinehart) at [23]. That is both because the operative word in s 37AG(1)(a) is “necessary” and because the court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice: Rinehart v Welker at [32]; Rinehart v Rinehart at [25]. The paramount consideration is the need to do justice; publication can only be avoided where necessity compels departure from the open justice principle: Rinehart v Welker at [30]; Rinehart v Rinehart at [26].

The critical question is whether the making of a suppression or non-publication order is “necessary to prevent prejudice to the proper administration of justice”. The word “necessary” in that context is a “strong word”: Hogan v Australian Crime Commission (2010) 240 CLR 651 (Hogan) at [30]. It is nevertheless not to be given an unduly narrow construction: Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52 at [8], citing Hodgson JA in R v Kwok (2005) 64 NSWLR 335 at [13]. The question whether an order is necessary will depend on the particular circumstances of the case. Once the court is satisfied that an order is necessary, it would be an error not to make it: Hogan at [33]. There is no exercise of discretion or balancing exercise involved: Australian Competition and Consumer Commission v Air New Zealand Ltd (No 3) [2012] FCA 1430 at [21].

7    The Full Court also emphasised (at [29]) the importance of the principle of open justice in the context of non-publication orders:

… as s 37AE makes clear, the public interest in open justice is a primary consideration in deciding whether to make a suppression or non-publication order. The principle of open justice is “one of the overarching principles in the administration of justice” which “lies at the heart of the exercise of judicial power as part of the wider democratic process”: Minister for Immigration and Border Protection v Egan [2018] FCA 1320 (Egan) at [4]. The principle involves justice being seen to be done. While the principle is not an “absolute concept”, an order restricting the ordinary open justice approach is “not lightly made”: Egan at [4].

8    Applying those principles to the facts and circumstances of this case, I am not satisfied that suppression of the exhibit to Ms Giles’s affidavit is necessary to prevent prejudice to the proper administration of justice, either for the reasons advanced by Giles George or for any other reason.

9    As for the assertion that Ms Giles’s affidavit has not yet been read in the proceedings, the transcript of the interlocutory hearing in which Giles George’s application for leave to intervene was heard and determined confirms that the affidavit was not formally read, in the sense that counsel for Giles George did not say that she formally read the affidavit of Ms Giles in support of the interlocutory application, and the Court did not state that the affidavit may be taken as read. Counsel for Giles George did, however, identify the affidavit and made it clear that it was relied on in support of the application for leave to intervene. It follows that the affidavit was effectively deployed by Giles George in support of its interlocutory application. In those circumstances, I do not consider that suppression of the exhibit to the affidavit is necessary to prevent prejudice to the proper administration of justice simply because it was not formally read in support of the interlocutory application. The question whether the fact that the affidavit was not formally read in support of the interlocutory application is a reason why access should not be granted to the document is addressed later in these reasons.

10    As for the assertion that the costs agreement “self-evidently contains commercially sensitive information” and that disclosure may “prejudice Giles George’s broader commercial interests and competitive position”, I accept that the administration of justice may in some cases be prejudiced if litigants are deterred from tendering documentary evidence containing confidential information because they cannot be confident that the confidentiality of that information will be preserved and protected: see Porter v Australian Broadcasting Corporation [2021] FCA 863 at [84]. This case, however, is not such a case. That is particularly because I am unable to accept the assertion that the costs agreement contains confidential information the disclosure of which would cause any prejudice to Giles George. That is certainly not self-evident from the document itself as was claimed in Giles George’s submissions. Nor is that assertion supported by any evidence. On my reading of the costs agreement, the terms and conditions appear to be fairly standard. There is also nothing unique or surprising concerning the “fee structures and billing practices”. I am unable in those circumstances to see how disclosure of the information in the document could possibly cause any prejudice to Giles George’s “broader commercial interests and competitive position”.

11    My view that the costs agreement does not contain any commercially sensitive information and that its disclosure is unlikely to cause any prejudice to Giles George is fortified by the fact that Giles George did not apply for a suppression order, or interim suppression order, either when it filed Ms Giles’s affidavit, or at the hearing of its application for leave to intervene. When counsel for Giles George indicated that the affidavit of Ms Giles was relied on in support of the interlocutory application, it was not suggested that the exhibit to the affidavit was confidential. The application for a suppression order was obviously prompted by the media access request.

12    As for the assertion that the content of the costs agreement is not directly relevant to the substantive issues to be determined by the Court, it is apparent that Giles George must have considered that the costs agreement was relevant to its application for leave to intervene. Why, it may be asked rhetorically, would the costs agreement be exhibited to the affidavit of Ms Giles if Giles George did not consider that it was relevant to the application for leave to intervene? In any event, I am unable to see why suppression of the costs agreement would be necessary to prevent prejudice to the proper administration of justice simply because it was not or is not relevant to the issues to be determined by the Court.

13    It follows that Giles George’s application for a suppression order must be dismissed.

14    As for the access request by the media organisation, I accept that in some circumstances leave to access or inspect a filed affidavit and its exhibits pursuant to r 2.32(4) of the Rules may properly be refused where the affidavit has not been read or tendered in the proceeding at the time of the access request: Re Universal Music (Australia) Pty Ltd v Sharman Licence Holdings Ltd; Ex parte Merlin BV (2008) 222 FCR 580; [2008] FCA 783 at [43]; Deputy Commissioner of Taxation v Hawkins (2016) 341 ALR 255; [2016] FCA 164 at [9]. That is not to say, however, that leave to inspect an affidavit which has been filed but not yet read in the proceeding can never be granted: Oldham v Capgemini Australia Pty Ltd [2015] FCA 1149 at [27]. In my view, there may be cases where leave to inspect an affidavit filed in a proceeding can be granted even if the affidavit has not yet been read in the proceeding. For example, I am unable to see any compelling reason why leave to inspect an affidavit should be refused where the affidavit does not contain any apparently controversial or contentious material.

15    Moreover, as Pagone J pointed out in Hawkins (at [10]), documents that were “used and deployed by the Court and were part of the material upon which orders of the Court were made in open court” are effectively in the same category as affidavits and exhibits that have been read or tendered in the proceeding. In my view, Ms Giles’s affidavit (and the exhibit thereto) was effectively used and deployed in support of Giles George’s successful application for leave to intervene. It is therefore in effectively the same category as an affidavit that was formally read in the proceeding.

16    I am also not persuaded that Giles George’s assertions concerning the confidentiality and supposed irrelevance of the costs agreement provide a sound reason for refusing the media organisation’s access request. As already indicated, I do not accept that the costs agreement is self-evidently commercially sensitive, or that its disclosure would cause any prejudice to Giles George. Nor do I accept that the costs agreement was or is necessarily irrelevant, or that there is no legitimate public interest in disclosing that document. The costs agreement was deployed in Giles George’s ultimately successful application for leave to intervene and the question whether it is relevant or irrelevant to the final resolution of the dispute between Ms Edwards and Giles George remains to be seen.

17    I would accordingly grant the media organisation leave to access and inspect the affidavit of Ms Giles and its exhibit pursuant to r 2.32(4) of the Rules. I should note, however, that page 5 of the exhibit contains the account number of Giles George’s bank account. That information should be redacted from the version of the document to which access is granted.

Associate:

Dated:    17 June 2025